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HomeMy WebLinkAbout2014-11-20 Leeward Exh A (SSV 14-09) LEEWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT NOVEMBER 20, 2014 SCV POOLS, SPAS, MASONRY INC. on A regularly advertised hearing on the application of behalf of Jimmy Rex Robinson (SSV 14-09) was called to order at 9:35 a.m. in the West Hawai‘i Civic Center, Community Center, Building G, 74-5044 Ane Keohokālole Highway, Kailua-Kona, Hawai‘i, with Chairman Brandi Beaudet presiding. COMMISSIONERS PRESENT: Brandi Beaudet, Collin Kaholo, Thomas Hickcox, Barbara Nobriga, Keith Unger and Thomas Whittemore ALSO PRESENT: Duane Kanuha (Planning Director), Danny Patel (Deputy Corporation Counsel), Daryn Arai (Planning Program Manager), Maija Jackson (Planner), Christian Kay (Planner) and Noriko Sauer (Commission Secretary) And approximately twelve people from the public in attendance. APPLICANT: SCV POOLS, SPAS, MASONRY INC. on behalf of Jimmy Rex Robinson (SSV 14-09) Continued discussion and action regarding the application for a Shoreline Setback Variance to allow the construction of a salt-water swimming pool, spa, concrete deck and 4-foot high pool security fence within the 20-foot shoreline setback area. The property is situated along the south (makai) side of the Kona Bay Estates private subdivision road, Kona Bay Estates Subdivision, Kailua-Kona, Hawai‘i, TMK: (3) 7-5-005:024. BEAUDET: First on today’s agenda is a continuation of discussion for Applicant: SCV Pools, Spas, Masonry Inc. This item was previously on the agenda, and we asked for a continuance. So on behalf, or in consideration of those commissioners who were not present at the meeting, I would like to ask staff if they could go through the presentation one more time. JACKSON: Absolutely. I will do that. Good morning, everyone. Good to see everyone here. The first item on the agenda is a request for a Shoreline Setback Variance. The applicant is SCV Pools, Spas, Masonry, and they are requesting the variance on behalf of Jimmy Rex Robinson. The subject property is located in the Kona Bay Estates Subdivision in the North Kona District of Hawai‘i. You can see the property outlined in red in this location here. You have the Kuakini Highway running in this direction, and then east-west direction you have Palani Road coming down off of the mountain – I’m sorry, I’m in the wrong area – here is Palani Road coming down off of the mountain into Kona Town. And then over here is the Old Airport area, which is shown in the gray that’s zoned Light Industrial. The entire Kona Bay Estates Subdivision is currently zoned Single- Family Residential 15,000 square feet, and you can see that in the light mustard color. This is an aerial view of the property and surrounding area. Again, you have Kona Bay Drive up at the top of the slide, and then you can see all the homes between the road and the sea. The subject property is outlined in red. You can see there is a single-family dwelling on the property that was built in 2002. And this kind of gives you an idea of the coastline in the area; you have a rocky ledge 1 EXHIBIT A and then some beach areas fronting each property. There is also a public access rock wall that runs along the front of each of the properties in this area here. The applicant’s requesting a Shoreline Setback Variance to allow the construction of a saltwater swimming pool, spa, concrete deck and four-foot high pool security fence within the 20-foot shoreline setback area. These structures would be located seaward of the single-family dwelling and mauka of a two-foot high by two-foot wide rock wall that’s used for public access. This is the applicant’s site plan; you have Kona Bay Drive at the top, you can see the existing single-family dwelling in this area here. The public access rock wall is shown cutting through property in this location. The shoreline was certified by the State in the area where there is just makai of the rock wall, and is shown in a dark blue line. And then 20 feet back from that would be your shoreline setback area, which is shown by the red line here. So the proposed pool, concrete deck and spa would be in this location between the house and the rock wall; you can see the majority of it lies within the shoreline setback area. This is a view of the subject property, looking east; the photo was taken in, this year, July. This is looking at the single-family dwelling, standing out near the rocky ledge; you can see the public access rock wall just in front of the naupaka hedge here. So the pool would be located just beyond the naupaka hedge. This is a view of the sea, standing near the rock wall; again, you can see the rocky ledge and then some sandy beach area. This is a view of the public access rock wall, and this is looking south towards Kona; so, again, you have the naupaka hedge, the house is located just off of the slide to the left, and the proposed pool area would be just off of the slide to the left as well. And then a view of the pool area, looking north; this is the applicant’s photo, you can see the single- family dwelling and some upper deck area, and then the pool would be located in this grassy area here. So the public access rock wall is just off of the slide to the left. And again, looking north towards Kona; the pool would be located in this area here. The Planning Director is recommending that this variance request be denied, because the proposed development does not meet the criteria for granting a hardship variance in Rule 8, which is the Shoreline Setback Rule. Rule 8 says that a variance may be granted upon finding that the development meets one of the following hardship standards: Would the applicant be deprived of reasonable use of the land if required to comply fully with the Shoreline Setback Rule? And our response to this is no; that the landowner would still be able to use the single-family residence on the property, which was built in 2002; there are many RS zoned properties throughout the island and some in Kona Bay Estates that are not developed with pools, yet the landowners are still able to reasonably use their property for residential use. Is the request due to unique circumstances that do not draw into question the reasonableness of the Shoreline Setback Rule? Again, our response to this is no; the shoreline has moved inland 20 feet in this area between 1984 and 1999 according to the Board of Land and Natural Resources certified shoreline; several of the pools in this subdivision, there are about 20 pools that were built in the subdivision, these were built before the shoreline moved inland, and therefore were not in the setback area when they were constructed; the fact that other lots within the subdivision have been allowed to construct pools does not show hardship to the landowner, particularly when there is evidence that coastal processes are causing erosion and accretion of sand and boulders; the long-term trend will be for coastal erosion to increase due to increased rates of sea level rise. Is the request the best practicable alternative that best conforms to the purpose of this rule? Our response to this is also no; the purpose of the Shoreline Setback Rule is to protect the shoreline from inappropriate manmade improvements; there 2 EXHIBIT A is clear evidence that coastal erosion is occurring in Kona Bay Estates, and therefore, it wouldn’t be prudent to continue to permit swimming pools in the shoreline setback area; the best alternative according to the rule is to keep the shoreline setback area in its current condition. And these photos I’m about to show you are just some evidence of the coastal processes that area occurring in Kona Bay Estates and particularly fronting this property. This is a photo taken in January of 2003, showing storm waves. This is a view standing up on the dwelling lanai looking out towards the sea, and you can see the public access pedestrian rock wall is located in this area here, and this area here was the sandy beach shown in the previous pictures, and then the rocky ledge out here; so the proposed pool would be located just in this area here. This is a view, again, looking north towards Kona; you can see the existing lanai and then the public access rock wall; so the proposed pool would be located in this area here. And just to show you an example of how sand moves along this coastline and the active coastal processes taking place, you can see in this photo taken in May of 2013, there is some space between how the area where the sand is deposited and the top of the public access rock wall. Keep in mind that when this subdivision was created back in ’84, I believe, this was a two-foot high rock wall. You can see in, I’m sorry, you can see, again, the same perspective, a little closer up, in May of 2013; there is a bit of a gap here between the sand and the rock wall. And then here this photo was taken a little over a year later; the sand is coming right up to the top of the rock wall. And then again you can see it’s right up to the top of the rock wall, some sand is moving beyond the rock wall. This is a photo of the adjacent property to the north, and you can see not only sand is deposited on the property but boulders as well, most likely deposited from the rocky shelf during storm events. That concludes staff’s presentation. Just to kind of recap where we left off at the last hearing, Commissioner Unger made a motion to approve the variance, Commissioner Kaholo seconded the motion, and there were three votes in favor. Four votes are needed to pass a motion, so the motion failed. Shortly after that, we lost quorum and the meeting ended. BEAUDET: Thank you, Maija. Commissioners, any questions of staff before we move on? Okay. It’s been brought to my attention that there are members of the community who wish to testify, so I’m going to reopen the portion of this application. I’d like to call out Adam Atwood. ATWOOD: Thank you. My name is Adam Atwood, and I am Mr. Robinson’s neighbor. I’m also president of the Kona Bay Estates Community Association. The Kona Bay Estates Community Association has no objection to the construction of Mr. Robinson’s pool. The location of the pool is on the mauka side of the seawall -. BEAUDET: If I could interrupt one second, I still need to swear you in. ATWOOD: Oh, I’m sorry. BEAUDET: If you could please raise your right hand? Do you swear or affirm to tell the truth on this matter now before the Planning Commission? ATWOOD: I do. BEAUDET: Thank you. And if you could just state your name and your residence one more time. 3 EXHIBIT A ATWOOD: Sure. My name is Adam Atwood. I’m a resident of Kona Bay Estates. I’m also the president of the community association. BEAUDET: Thank you. Please proceed. ATWOOD: Kona Bay Estates Community Association and the residents have no objection to Mr. Robinson building his pool. As noted in the slide presentation, there are other pools that are in similar areas, subject to similar shoreline and ocean impacts. It’s our feeling that there is no negative affect to the neighbors or public or the construction of this pool. And we have no objection and we support his project. BEAUDET: Thank you. Commissioners, any questions or comments for the testifier? Commissioner Kaholo. KAHOLO: I have a question. As you’ve seen the presentations up there where the wave was oncoming to the properties, how far up from your property is the applicant’s location? ATWOOD: My property? KAHOLO: Yes. ATWOOD: I live just across the street from Mr. Robinson. KAHOLO: Across the street. ATWOOD: Yeah. KAHOLO: So in other words there is the opening lot in between you and, or the access. ATWOOD: There is a street between myself and Mr. Robinson’s; I’m directly behind him on Kona Bay Drive. KAHOLO: So would you say you don’t get affected by the wave coming in? ATWOOD: I do not, no. KAHOLO: Okay, thank you. BEAUDET: Thank you. ATWOOD: Thank you. JACKSON: Mr. Chair? I’m sorry, I forgot to mention that the commissioners also since our last th hearing should have received an email dated November 16 from Cory Harden regarding this application. I believe that was in your folders this morning. BEAUDET: Yes. 4 EXHIBIT A TANAKA: Mr. Commissioner, we would like to ask Commissioner Kaholo that the specific question was, to Adam -. BEAUDET: One moment -. TANAKA: Oh, I’m sorry. BEAUDET: I’m going to need to swear you in. But before I do that, I’m just going to ask if there is any other members within the audience that would wish to comment or testify on this application. Okay, with that, I’d like to ask for a motion to close the public hearing portion of this application. KAHOLO: I so move we close. HICKCOX: Second. BEAUDET: All in favor? ALL COMMISSIONERS: Aye. BEAUDET: Thank you. Okay, so, now, I’m sorry, we’ve just got to go through the process. So please, would the applicant please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Planning Commission? TANAKA: I do. BEAUDET: Please state your name. TANAKA: My name is Neal Tanaka, representing SCV Pools. BEAUDET: Okay. TANAKA: And the owner. Actually, I’d like to introduce Steve who is the owner of SCV Pools, who would like to rebut, or comment, on Commissioner Kaholo’s question, which was to Adam: Does he see effect from the waves, correct? BEAUDET: Do you swear or affirm to tell the truth now before the Leeward Planning Commission? ERENBERG: I do. BEAUDET: Please state your name. ERENBERG: Steve Erenberg, the owner of SCV Pools, representing the owner. Okay, I kind of would like to start at the beginning of what we addressed the last time, which was what was on the presentation in the beginning, and that was to start with an erosion factor and the waves that you were just discussing. A lot of times when we build swimming pools, they are not specifically just for the purpose of jumping into and enjoying, you know, your backyard; a lot of it has to do with a support factor for the house and protecting the house and protecting the land, and also stopping 5 EXHIBIT A erosion from taking place. So, given the fact, you know, watching TV and watching all the things that have happened in Kealakekua Bay, and watching things about tsunamis and stuff like that, I think that there is a real issue with the homes being endangered more so than you would have a swimming pool. The swimming pool would be basically in ground, which would not be coming out of the ground, and anything that may come over the wall, give it sand, would not affect the swimming pool in any way, shape or form. The other thing would be is rocks coming over the wall. I have never seen any rocks coming over the wall. We have built several swimming pools in that area. One recently, before the last tsunami that did hit Kona Bay Estates, nothing happened; the water went all the way out to the street, the pool got some sand in it, and they vacuumed it, and it was back in business again. It did not stop them from being unable to rent the house, use the house, and stop using the swimming pool. The hardship of this case would be that lack of use of the property, the location of the swimming pool being put in the backyard right now is absolutely useless; it cannot be used for anything; it is at a level to where they cannot go out off their lanai and get access to the pool, unless it is constructed along with other things that we are going to do back there. That would make the property more useful. It would make the property more valuable. And it would also, if there is any reason he wishes to sell the home later, and there are other pools in the area, somebody is going to definitely be taking up a house that already has the pool versus their home, so there is going to be an extreme loss in several different areas. Going back to the erosion, the seawall has basically been put up to protect the properties; a swimming pool can do the exact same thing. If there is something that’s taking place where the land is starting to disappear or wash away, a swimming pool in fact will stop that. It will stop complete erosion from going beyond the seawall. It will act as another wall, a barrier, again to prevent any further erosion that’s taking place with the home. For example, you’ve got great beams and footings that are supporting those pylons that are with the house; once that’s been undermined, you are going to have a problem with the house. The swimming pool would stop all of that, which means that there would be no further erosion taking place threatening the house where the swimming pool would be built, and, again, it wouldn’t be affecting the pool. With regards to any lawsuits, I also believe that there is not going to be any threat to anybody approving the project because of fear of a lawsuit, because it’s not going to, I don’t believe in any way, shape or form, come back on anybody’s decision to approve this project. I think it’s been proven that the owner was not going to be able to come back and, you know, come against anybody that has approved this. And, what else was there, I think that’s pretty much where we were at the last time with this. So, as far as erosion, if there is any questions or you have anything that opposes anything I just said, please let me know so I can address those issues. TANAKA: We will acknowledge those photos did show the waves overtaking that wall, and that’s understandable. However, those waves did not show any evidence of in fact erosion on the lot before and/or after. Like Steve did mention, there was sand in adjacent lots, but, as we mentioned at our last meeting, a protective fence barrier will also be constructed as per code, Building Code, and that will prevent the rocks, which we saw photos of, which we explained last time. Those waves, of course, are uncontrollable by Jim, and the erosion, if were to occur, would be outside, the makai side of the wall; it’s apparent in those photos that sand does move up against the wall, but 6 EXHIBIT A does not pull away or undermine his property from evidence of those photos. At this moment, if you don’t mind, I’d like to introduce the owner, Jim Robinson, of the property. If you don’t mind, Chair, to swear him? BEAUDET: If I could just swear you in. Please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Leeward Planning Commission? ROBINSON: Yes, I do. BEAUDET: Please state your name. ROBINSON: Jim Robinson. BEAUDET: If you could please speak into the mike, sir. ROBINSON: Jim Robinson. BEAUDET: Thank you. We are ready. ROBINSON: Pardon? TANAKA: They are ready for your comments. ROBINSON: Oh, basically, there was one thing that came up that I just wanted to, they said that the lot next to mine, which would be the north of mine, the rocks that were coming in due to the surf. Those rocks did not come in due to the surf; I watched a truck haul in there and dump those rocks. It used to be a low-lying thing there, and those rocks were dumped there. They were not brought in by the surf. And I’ve been there over ten years. BEAUDET: Thank you. TANAKA: So Steve did mention -. BEAUDET: If you could just state your name before you speak -. TANAKA: I’m sorry, this is -. BEAUDET: For our recording. TANAKA: Neal Tanaka. Steve Erenberg, the owner of SCV Pools, did mention a lawsuit, and at our last Commission meeting Corporation Counsel in discussion with the commissioners did agree upon the fact that the County would not be liable, if approving this variance, of any lawsuit for rocks to encroach onto Jim’s property. I just want to make that clear for this meeting. BEAUDET: Commissioners, any questions or discussion with the applicant? KAHOLO: I have a question. Pertaining to the lawsuit, there was stated at our last meeting as a younger generation go to school, they get very, very educated, and anytime we write up something, 7 EXHIBIT A they can strip it down to what they want it to be, meaning if you have anything in place, lawyers can strip that thing apart to make it for a personal gain. That’s what I’m saying. Because if we don’t have something in place in writing, stating the reason, what we discuss with you here, that will support anything that the County has in place for the future, that would be something good that we can work with. But if we don’t have anything in place, it can be stripped apart. That’s all I have. Thank you. TANAKA: I’m sorry, Commissioner, we have the owner here, if he has any comments with regards to potential lawsuits, but at this time it was our understanding, I’m not a lawyer, please forgive me but I feel like I’m educated, younger generation, and Corporation Counsel did say that even if something were to be written down, that the County would not be liable whether it will strip down or not, I mean, the basis of any case would be dismissed. And that is our understanding from the County’s Corporation Counsel. But if you would like to hear anything for reaffirmation in writing from the owner, we can do that as well. But at this point we don’t feel that the County would be liable in any case. HICKCOX: Mr. Chair? WHITTEMORE: I’ve got a question. I just, just of clarity, on the particular subdivision, I noticed that there was one picture that was presented, an aerial, it showed other properties, not contiguous but other adjoining properties nearby that did have pools, and my recollection in going along the coastline there they have, those particular pools have the benefit of having a significant rock wall buffering them between the rocks below and where their pool is, there is an elevation, is that correct, on the other properties? TANAKA: There are pools with the condition, yes. There are other pools along the shoreline that do not have the condition. So it is in both situations. WHITTEMORE: Okay. TANAKA: We do have photos of pools that have that and don’t have that for your record, if you’d like to see them. WHITTEMORE: So the, my other question that I want to clarify, and perhaps the Robinsons could answer this, historically, it seems strange that the wall is so low at that point when it’s significantly higher on all the other points, was there a drop between the wall and the rocks below previously? Or was it always at the ground level? TANAKA: I believe the wall was always two feet high in front of the Robinson’s property. WHITTEMORE: It was always two feet high. TANAKA: Right. WHITTEMORE: I’m talking about the makai side of the wall. TANAKA: Yes, it was always that high. 8 EXHIBIT A WHITTEMORE: It was two feet. TANAKA: Yes. WHITTEMORE: Okay. BEAUDET: Commissioner Hickcox. HICKCOX: Correct me, if I’m wrong, the application is asking for the granting of a permit to construct a pool and spa. This spa, is this a fresh water spa? Salt water spa? TANAKA: I’ll defer to the pool contractor. ERENBERG: Okay, for the record, Steve Erenberg, owner of SCV Pools. It is the same water as what’s used in the swimming pool. HICKCOX: Okay. ERENBERG: Which is, and to clarify the salt, the salt in this pool is 3,000 parts per million; the salt in the ocean is 35,000 parts per million. So it doesn’t affect anything as far as. HICKCOX: So the filtration system that would be used to address any kind of bacteria or buildups within the spa and the pool, this would be filtered through a regular system like -? ERENBERG: The system that is used on this pool would be a salt system. The salt system does not have enough parts per million to contaminate landscaping or kill anything that’s anywhere near or around it nor does it affect any environmental issues. The issue of using chlorine is probably worse than salt because of the concentration of it. It is, as far as the salt goes, trying to think, yeah, it’s, it would be a salt pool, oh, as far as the salt itself, if the sand got washed into the pool, the last time we had our meeting we discussed filtration systems on swimming pools, and the majority of swimming pool filter systems in Hawai‘i right now are sand filters, which is using sand to filter a swimming pool. The other system would be a cartridge, which again does not have anything in it, but it would not affect the pool in any way nor the chemicals. As far as contaminating swimming pool water, it would probably be done by lack of chemicals, rather than filtration. Filtration is going to be used to get water clarity versus keeping the algae out of the pool, then that would be through use of the salt system. HICKCOX: Okay, thank you. BEAUDET: Any more comments from the commissioners? NOBRIGA: I have a question. Hurricane Iselle, did she come ashore into the yard? ROBINSON: Just very little over the wall. NOBRIGA: Thank you. 9 EXHIBIT A ERENBERG: I have a question. If the hurricane or anything were to go over the wall, how would that affect the swimming pool? Or what would be the concern? NOBRIGA: You would have 35 million parts of salt in your 3,000 million tank. ERENBERG: Inside the swimming pool? NOBRIGA: Yeah. ERENBERG: And how would that affect the pool? In other words, there is a swimming pool we are presently working on on Ali‘i Drive, and back in the 60’s a swimming pool used to fill up with seawater. The -. BEAUDET: Let me just interject here. The hearing portion of this application was closed at the previous meeting, so, and I think these types of questions have been asked and answered, too, so just in the consciousness of time and in respect of the other applications for today, and I think we’ve all gone through our notes, and those questions were actually on record from the last time, so if there is any questions to be asked by the Commission that weren’t asked in the previous meeting, then I’m open to that. But if not, then let’s move forward. So if there is no more questions of the applicant or of staff, I would like to ask the Commissioners for a motion to action. WHITTEMORE: I’ll make a motion. I’d like to move that the application for the Shoreline Setback Variance, Docket No. SSV 14-09, be denied based on the Planning Director’s recommendation. HICKCOX: Second. BEAUDET: The motion has been made by Commissioner Whittemore for denial of the applicant, SCV Pools and Spas, seconded by Commissioner Hickcox. Staff, would you like to take, oh, any discussions before we move onto the vote? With that, staff? JACKSON: Okay, Commissioner Whittemore? WHITTEMORE: Aye. JACKSON: Commissioner Hickcox? HICKCOX: Aye. JACKSON: Commissioner Kaholo? KAHOLO: Aye. JACKSON: Commissioner Nobriga? NOBRIGA: Aye. JACKSON: Commissioner Unger? 10 EXHIBIT A UNGER: Nay. JACKSON: And Chair Beaudet? BEAUDET: Aye. JACKSON: The motion to deny passes, five-zero, I’m sorry, five to one. TANAKA: Chair, with respect, is there any appellate process to appeal this decision? BEAUDET: Yes, there is. Counsel, do you want to comment to that? PATEL: Yes, there is. The Commission will send you an action letter citing you to the rule, and you can proceed in that way. TANAKA: Okay. BEAUDET: Thank you. The discussion ended at 10:10 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 11 EXHIBIT A